Lest we forget a patriot

Ishtiaq was senior to me by two years at the University of Dhaka. I had no personal acquaintance with him during our university days. Those were the days when the junior students used to maintain a distance from the senior students. Very often, I used to see him delivering speeches under the mango tree of the old premises of the University of Dhaka. Normally he used to deliver his speeches in English. The thought-provoking utterances of the young handsome Ishtiaq used to attract us all. I still remember that I along with my friends used to listen to him with rapt attention as his speeches used to inspire the young minds.

After leaving the university, I saw Ishtiaq at the High Court of Dhaka where I joined in 1960. Within a very short span of time, he made his mark as a good lawyer. I mainly found him conducting constitutional and civil cases in the Supreme Court. It appeared to me that he had little interest in criminal cases. He appeared in many important constitutional cases and tried to help the judges in arriving at a correct interpretation of our constitutional provisions. As a lawyer he never tried to mislead the court. His fairness, argumentative ability, and knowledge of law are indeed praiseworthy. Ishtiaq could have adorned the seat of justice as a judge of the Supreme Court, but he never aspired to that; yet I am happy to see that his only son has been elevated to the High Court Division. I am confident that he would follow the footsteps of his late father in keeping the flag of judiciary high.

Although I have not found Ishtiaq to be actively associated in the politics of Bangladesh, yet he always spoke of healthy politics in the country. Ishtiaq truly believed that in a democracy, the courts are vital institutions for upholding the rule of law, protecting the rights of individuals, to live, work and enjoy without fear or favour. For ensuring meaningful independence and neutrality of the judiciary he fought against the decentralisation of the High Court Division during the autocratic rule of General Ershad and gladly went behind the prison along with many other lawyers of the country.

As Attorney General of Bangladesh, I had found him in conducting cases on behalf of the government with utmost fairness. The honesty, dedication, and thoroughness with which he conducted the cases at the Bar were worth emulating by lawyers of today. As a lawyer, he appeared before me in many cases and I always found him to be respectful towards the judges. He had a nice way of presenting his cases and to win over the hearts of the judges. Even in disagreement with the viewpoints of the judges he always accepted the judgment in good grace. Today, this is a rare virtue in many lawyers.

While writing this excerpt, suddenly I remembered a little event, which reflected a basic quality in the man. When in 1979, I was elevated to be a judge in the High Court Division, I had to transfer a case for final hearing to his chamber. After final disposal of the case, on receipt of the final fees, I sent it to him, but instead of accepting the money he returned the same to me by saying that he could not take the money for doing a case of a friend who had become a judge. Money was no consideration in his professional career, though he earned a lot as a lawyer of good reputation. I also know of some instances when he conducted cases without any fees at all.

Ishtiaq was an advisor in the Caretaker Government of Justice Shahabuddin Ahmed in 1991. In the Caretaker Government of 2001, I also inducted him as an Advisor in the Council of Advisors. Justice Shahabuddin Ahmed's advice helped me in choosing him at that time. I must state very candidly that soon after formation of Caretaker Government, Ishtiaq reminded me of the case of Masdar Hossain (200 BLD AD 104), in which I also wrote a concurring judgment with the main judgment of the Chief Justice. His intention of mentioning the case to me was to get the approval from me to proceed with the implementation of the judgment of Masdar Hossain, thereby to separate the judiciary from the executive organs of the state as per Article 22 of the Constitution. Initially, I was a little reluctant to consider his proposal as I thought that one might argue that the broad question of the separation of judiciary might be one of policy-decision, which is beyond the jurisdiction of the caretaker government. Ishtiaq's persuasive argument that our judgment fixed a time limit to implement the judgment and the time having expired, the executive government could act in aid of the Supreme Court. Strictly speaking in that perspective it was not a policy decision at all. Ultimately I agreed with him. And by his able guidance, within a short span of time relevant rules and ordinances were framed for approval of the Council of Advisors and finally of the President of the Republic in his ordinance-making power. He also took personal pains in convincing the President to agree to our efforts to exercise his ordinance making power in this regard. To be frank and honest it was due to all his efforts that we could take steps in this matter.

But alas the dreams of Ishtiaq remain unfulfilled, as he could not see the separation of judiciary in his lifetime. Ishtiaq is no more in the world of living but I can say honestly that he was a man who loved the institution of the Supreme Court in particular and the subordinate judiciary of Bangladesh in general. He always dreamt and thought of a powerful, impartial, and independent judiciary of Bangladesh. He felt that in an independent country like Bangladesh where the sufferings of the common man know no bounds, the importance of an independent judiciary is of enormous and abiding value. He always advocated for the cause of an independent judiciary in his speeches and utterances before us all as originally conceived in the Constitution of 1972. Ishtiaq could visualize that Bangladesh started well with almost all the trappings of Westminster model of democracy with a fine Constitution, but due to lack of political commitment it fell prey to misgovernance.

Ishtiaq was basically a man of soft disposition and gentle nature. His friendly attitude towards all had earned him a large number of good friends and well-wishers in life. His tender and soft behaviour had always enamored me. As a man, I have great respect for the departed soul for his qualities of head and heart. May Allah in His infinite mercy rest his soul in peace in heaven. In his death we have lost a friend, philosopher and guide. In the midst of great personal loss for late Ishtiaq's wife and other members of the family, there is enough scope to feel proud for the departed soul with total resignation to the will of the Almighty.

Finally, I conclude with a passage from his writing entitled, "The Constitution -- A Vision for Bangladesh," wherein he wrote, "However, the ideals of a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic, and social, for all citizens continue to be our dream and vision for the future. It is our belief that we prosper only under rule of law and in freedom."

Justice Latifur Rahman is former Chief Justice of Bangladesh and former Head of the Caretaker Government of Bangladesh.